Citation Nr: 9815339
Decision Date: 05/18/98 Archive Date: 05/29/98
DOCKET NO. 94-32 409 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUES
1. Entitlement to an increased evaluation for residuals of a
fractured left calcaneus, currently rated as 10 percent
disabling.
2. Entitlement to an increased evaluation for ulcer disease,
currently rated as 10 percent disabling.
3. Entitlement to an increased evaluation for residuals of a
laceration of the forehead, with scar, currently rated as 10
percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J.R. Bryant, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1969 to December
1974 and from June 1976 to December 1993.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a May 1994 rating determination by the
Togus, Maine Regional Office (RO) of the Department of
Veterans Affairs (VA).
This case was previously before the Board and was remanded in
October 1996 for further development.
REMAND
The veteran contends that his service-connected left ankle
disability, ulcer disease and forehead laceration residuals
are more disabling than the current 10 percent ratings
reflect.
Of record is a March 1997 VA examination which the Board
finds insufficient for evaluation purposes. Specifically,
the examination report lacks findings related to functional
loss due to pain, weakness, excess fatigability or
incoordination and the extent to which these factors affect
range of motion. On examination, a popping sensation was
demonstrated in the tendons or ligaments in the area of the
left lateral ankle. The veteran was also noted to have range
of motion of 3 to 4 degrees of dorsal extension and plantar
flexion possibly restricted to 10 degrees, without
consideration of the Court's decision in DeLuca v. Brown, 8
Vet.App. 202 (1995). The examination report did not mention
the effect of pain on function and movement of the left
ankle. In light of the Court's guidelines provided in
DeLuca, the Board is compelled to find that reexamination of
the veteran is necessary in the present case in order to
allow for proper assessment of his left ankle disability
under 38 C.F.R. §§ 4.40, 4.45 (1997). The Board further
notes that as regards painful motion of the left ankle, the
provisions of 38 C.F.R. § 4.59 (1997) must be considered.
The Board also notes that in a July 1997 statement the
veteran challenged the adequacy of the March 1997
examination, stating that there was no mention or evaluation
of his pain and constant limping. The veteran reported that
some days he is fine but other days he cannot walk on it at
all.
With respect to the issue of ulcer disease, the veteran
testified at his December 1994 RO hearing that in the past
Tagamet alleviated his symptoms totally but that he now had
to take medication on a continual basis. He specifically
testified that his service-connected ulcer disease had become
worse since the last VA examination in February 1994 and that
he had received recent VA medical care for his ulcer disease.
However medical evidence obtained pursuant to a Board remand
shows treatment between March 1995 and March 1997 is negative
for clinical findings pertaining to ulcer disease. The
records primarily show treatment for a nonservice-connected
hiatal hernia.
The Court has held that contemporaneous VA medical
examinations must be provided in order to fulfill the VA’s
duty to assist, which is mandated by 38 U.S.C.A. § 5107 (West
1991 & Supp. 1997), where either a veteran claims an increase
in symptomatology of service-connected disability since the
time of the last examination, or the available evidence is
too old or unreliable to adequately evaluate the current
state of the condition(s) in question. Olson v. Principi,
3 Vet.App. 480, 482 (1992). Accordingly, the Board is of the
opinion that the veteran should be afforded a thorough and
contemporaneous VA examination of his ulcer disease, to
include a review of his claims file and past clinical
history, with particular attention to the severity of present
symptomatology, as well as any significant pertinent interval
medical history since his VA examination in February 1994.
Any additional relevant records of VA or private treatment
that are not currently of record should be obtained and
associated with the claims file.
It is noted that neither Esteban v. Brown, 6 Vet.App. 259
(1994) nor 38 C.F.R. § 4.14 (1997), regarding separate
disability evaluations, has been considered at the RO. The
Board notes the VA examination in 1997, shows injury to the
supraorbital nerve, in addition to his service-connected
forehead scar. Separate evaluations have not been considered
regarding the additional findings. This development should
be completed prior to any appellate consideration at the
Board. It is noted that while 38 C.F.R. § 4.14 (1997)
directs that the evaluation of the same` disability under
various diagnoses to be avoided, the Court has held that
separate and distinct manifestations (or symptoms) of an
injury or disease warrant separate disability ratings under
§ 4.14. Esteban v. Brown, 6 Vet.App. 259 (1994). The RO
should give consideration to the assignment of a separate
disability evaluation for supraorbital nerve injury. The
Board is of the opinion that, upon the completion of the
above requested development, consideration should be given to
the Court's holding in Esteban, Supra.
Under these circumstances, this case is REMANDED to the RO
for the following:
1. The RO should obtain any additional
VA treatment or private treatment records
pertaining to the veteran’s service-
connected left ankle disability, ulcer
disease and forehead laceration residuals
since October 1995. Copies of complete
records should be associated with the
claims folder.
2. The veteran should thereafter be
referred for VA orthopedic examination
for the purpose of determining the
current manifestations and severity of
his service-connected left ankle
disability and forehead laceration scar.
All indicated tests and studies should be
conducted and all findings should be
reported in detail. Ranges of motion of
the ankle should be reported in degrees.
The examiner should then describe in
detail the extent of all functional
impairment due to the service-connected
left ankle disability which results from
pain, particularly pain on motion.
Considerations such as weakness,
incoordination or reduction of endurance
should be discussed to the extent
necessary. These determinations should,
if feasible, be expressed in terms of
additional range of motion loss.
Additional limits on functional ability
during flare-ups should also be
expressed, in terms of additional degrees
of limitation, if feasible. The examiner
should also identify all residuals of the
veteran’s service-connected left ankle
disability. With respect to the forehead
scar, the examiner should specifically
note if the scar itself is tender and
painful on objective demonstration,
disfiguring or otherwise symptomatic.
The claims folder must be provided to and
reviewed by the examiner as part of the
examination.
3. The RO should also schedule the
veteran for a VA gastrointestinal
examination in order to determine the
severity of his service-connected ulcer
disease. All indicated tests and studies
should be accomplished. The report of
examination should include a detailed
description of all pertinent complaints
and clinical manifestations. The
examiner is also requested to
specifically address the diagnostic
criteria listed as requisite to the grant
of an increased evaluation as outlined in
38 C.F.R. § 4.114, Code 7304 (1997). The
claims folder must be provided to and
reviewed by the examiner as part of the
examination.
4. After the development requested above
has been completed, the RO should again
review the record. All conclusions
should be articulated, in light of the
analysis set forth in DeLuca, Id. and
Hicks, Id., and all other applicable VA
regulations, including 38 C.F.R. §§ 4.40
and 4.45 (1997), should be specifically
discussed. The RO should reconsider the
issue of entitlement to an increased
rating for forehead laceration residuals,
including a scar, with specific
consideration of a separate evaluation
for service-connected supraorbital nerve
injury, and 38 C.F.R. §§ 4.10 and 4.14,
Esteban v. Brown, 6 Vet.App. 259 (1994),
and any additional evidence associated
with the file. If the benefits sought
remain denied, the veteran and his
representative should be furnished a
supplemental statement of the case which
contains a summary of the relevant
evidence and a citation and discussion of
the applicable law and regulations. They
should be given the opportunity to
respond to the supplemental statement of
the case.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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